Boa Morte and Secretary, Department of Social Services (Social services second review)
[2024] AATA 1939
•21 June 2024
Boa Morte and Secretary, Department of Social Services (Social services second review) [2024] AATA 1939 (21 June 2024)
Division:GENERAL DIVISION
File Number(s): 2023/4801
Re:Margarida Boa Morte
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mr S Evans, Member
Date:21 June 2024
Place:Sydney
For the reasons outlined below, the reviewable decision is set aside and remitted to the Respondent with the directions that:
(a)the Applicant exceeded the allowable study time for the course under paragraph 569H(3)(c) of the Act on 5 December 2022; and
(b)the Applicant’s austudy payment is to be cancelled from 5 December 2022.
.............................[sgd].........................................
Mr S Evans, Member
CATCHWORDS
SOCIAL SECURITY - austudy payment - whether austudy payment correctly cancelled – ‘allowable study time’– consideration of withdrawal from units and failed units of study – Principles of administration Social Security (Administration) Act 1999 - reviewable decision is set aside and remitted with directions
LEGISLATION
Administrative Appeals Tribunal Act1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Wall and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 433
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Mr S Evans, Member
21 June 2024
INTRODUCTION
Margarida Boa Morte (the Applicant) enrolled in a Bachelor of Criminal and Community Justice/Bachelor of Laws double degree program at the University of Western Sydney in 2019.[1] She was granted austudy from 15 November 2021 on the basis of her full-time study.[2] Services Australia (the Agency), cancelled the Applicant’s austudy from 25 July 2022 as she exceeded the allowable study time.[3] The Applicant contends that four semesters of study should be disregarded when determining if she exceeded the allowable study time owing to circumstances beyond her control.[4] She sought review of the decision, which was affirmed by an Authorised Review Officer (ARO) at the Agency on 9 January 2023. The Applicant sought review of the ARO’s decision at the Social Services and Child Support Division of the Tribunal (AAT1), which affirmed the decision on 8 June 2023.[5]
[1] Supplementary T-Documents, ST2, p.212.
[2] T-Documents, T20, p.171.
[3] T11, p.74-75; Social Security Act 1991, s 569H, 569H(3).
[4] Applicant’s Statement in reply to the Secretary’s Statement of Facts and Contentions (Part 1), p.8.
[5] T12-T13, p.76-80; T2, p.8-11.
The Secretary of the Department of Social Services (the Secretary) accepts that the Applicant was eligible to receive austudy payments until 5 December 2022, but does not concede additional time spent undertaking the course should be disregarded.[6]
[6] Secretary’s Statement of Facts and Contentions [52]-[53].
For the reasons that follow, the reviewable decision will be set aside and remitted to the Secretary.
ISSUE TO BE DETERMINED
The issue to be determined is whether the Applicant’s austudy was correctly cancelled with effect from 25 July 2022.
LEGISLATION, POLICY AND FACTUAL BACKGROUND
The relevant law is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act). The Social Security Guide (the Guide) provides relevant departmental policy guidance.[7] It is well established that the Tribunal is not bound by government policy, but it will generally be taken into consideration unless there is good reason not to do so.[8]
[7] Guide to Social Security Law.
[8] See Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 per Brennan J, which was cited with approval in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13, 30 per French and Drummond JJ.
On 9 November 2021, the Applicant lodged a claim for austudy payment in respect of the Bachelor of Criminal and Community Justice/Bachelor of Laws (the double degree) at Western Sydney University which she commenced in 2019.[9] She was granted austudy from 15 November 2021, on the basis of her full-time study of the course ending on 24 July 2022.[10]
[9] T5, p.44-53.
[10] T20, p.171.
The minimum time for completion of the double degree is five years of full-time study.[11] Paragraph 569H(3)(c) of the Act provides that the allowable study time for this course was five and a half years, being the minimum amount of time needed to complete the course as a full-time student, plus half an academic year.
[11] ST4, p.221
Before she transferred to the double degree, the Applicant studied a Bachelor of Criminal and Community Justice (WSTC First Year Program) at Western Sydney University, commencing in 2016.[12] In 2017 and 2018, the Applicant studied a Bachelor of Criminal and Community Justice at Western Sydney University.[13]
[12] ST2, p.216-217.
[13] ST2, p.210-211.
Subsection 569H(8) of the Act states that there are five levels of tertiary courses: levels M, A, B, C and D. Subsection 569H(10) defines the following as Level B courses:
(a) a bachelor degree course (other than a postgraduate course), with or without honours;
(b) the bachelor level component of a masters degree course with concurrent bachelor and masters level study;
(c) a diploma course other than:
(i) a graduate or postgraduate diploma course; or
(ii) a course for which an entry requirement is successful completion
of year 10 of secondary studies; or
(iii) a TAFE course or a course provided by a VET provider;
(d) a Master’s qualifying course;
(e) the Barristers or Solicitors Admission Board’s course;
(f) a course of advanced education regarded by an accrediting authority as being at UG1 or UG2 level.
As the double degree is a bachelor’s degree, it is considered a Level B course. Subsection 569H(1) of the Act provides that the time spent by the Applicant on this course or another tertiary course at the same level must not exceed the allowable study time for the course, unless that time can be disregarded under subsection 569H(7) of the Act. Relevantly, Criminal and Community Justice (WSTC First Year Program), and Bachelor of Criminal and Community Justice, are also Level B courses as defined in section 569H(10) of the Act.
Based on the Applicant’s academic transcript, the Secretary has assessed how each of the courses has counted towards her allowable time for a Level B course.[14] The Applicant’s study of the Bachelor of Criminal and Community Justice (WSTC First Year Program) counted for one year of her allowable study time for a Level B course:[15]
[14] ST2, p.210-217.
[15] Secretary’s Statement of Facts and Contentions [34].
Year Term Credit Points Counted Full-time study Pro Rata Assessment 2016 Term 1 30 Yes 0.34 Term 2 30 Yes 0.33 Term 3 20 No 0.22 2017 Term 1 10 No 0.11 Total 1
The Secretary has calculated that the Applicant’s study of the Bachelor of Criminal and Community Justice at Western Sydney University counted 1.5 years towards the Applicant’s allowable study time for a Level B course:[16]
[16] Ibid, [38]; ST2, p.210-217.
Year Semester Credit Points Counted Full-time study Pro Rata Assessment 2017 Autumn 10 No 0.125 Spring 30 Yes 0.5 Summer 10 Summer Session 0.125 2018 Autumn 30 Yes 0.5 Spring 20 No 0.25 Total 1.5
In the Autumn session of 2019, the Applicant transferred to the double degree.[17] The Secretary contends that the Applicant’s study of this degree contributed 3.75 years to towards her allowable study time:[18]
[17] ST2, p.212-215.
[18] Secretary’s Statement of Facts and Contentions [49].
Year Semester Credit Points Counted Full-time study Pro Rata Assessment 2019 Autumn 20 No 0.25 Spring 20 (one subject failed but still counted) No 0.25 2020 Autumn 10 (one subject
withdrawn so not counted)
No 0.125 Spring 30 Yes 0.5 2021 Autumn 30 Yes 0.5 Spring 30 Yes 0.5 2022 Autumn 30 Yes 0.5 Spring 40 Yes 0.5 Summer 10 Summer Session 0.125 2023 Autumn 30 Yes 0.5 Spring In progress (30) Summer In progress (20) Total 3.75
The Applicant withdrew from the subject ‘Contracts’ in the Autumn 2020 session. The assessment that the study of double degree accounted for 3.75 years of allowable study time recognises the Secretary’s decision that the withdrawn subject should be disregarded pursuant to 596H(7)(i) of the Act.[19]
CONSIDERATION
[19] T6, p.59-60; Secretary’s Statement of Facts and Contentions [48].
Did the Applicant exceed the allowable study time?
Section 568 of the Act states that a person qualifies for austudy payment if, amongst other things, they satisfy the ‘activity test’. Section 569(1) of the Act provides that a person satisfies the activity test if the person is undertaking qualifying study. Section 569A of the Act states that a person is undertaking qualifying study if:
(a) the person:
(i) is enrolled in a course of education at an educational institution; or
(ii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to re‑enrol in the course when re‑enrolments in the course are next accepted; or
(iii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to enrol in another course of education (at the same or a different educational institution) when enrolments in the other course are next accepted; and
(b) the course in which the person is enrolled, or intends to enrol, is an approved course of education or study (see section 569B); and
…
(c) the person is a full‑time student or a concessional study‑load student in respect of that course (see sections 569C and 569D); and
(d) if the course is a combined course or a course other than an accelerator program course—the person satisfies the progress rules (see sections 569G and 569H).
Paragraph 569H(3)(c) of the Act provides that the allowable study time for a course undertaken by a full-time student ‘is the minimum amount of time needed to complete the course as a full‑time student plus half an academic year’.
Instruction 3.3.4.70 Austudy & progress rule for tertiary study of the Guide provides in relation to allowable study time:
Allowable time is measured against the minimum time to complete the tertiary course CURRENTLY being studied. Time already spent in study at the SAME LEVEL in the previous 10 years is then deducted from this limit to determine whether the recipient is still qualified for the payments. Whether a person was in receipt of student payments or not at the time they previously studied is irrelevant in the allowable time assessment, as all previous study attempted in the previous 10 years is counted. The 10 years is counted from the day on which the student enrols in their current course, not their current year of study.
…
Recipients can study a second course at the SAME level within the allowable study time rules. Recipients may commence or continue to receive Austudy for any study period/s that they enrol in, for a second course at the SAME level, when there is any additional allowable time available to them in respect of the study period/s. This is irrespective of whether a recipient had received Austudy for the first qualification.
…
The Western Sydney University handbook states the double degree requires 5 years of full-time study, providing an allowable study time of 5.5 years.[20]
[20] ST4, p.221; Secretary’s Statement of Facts and Contentions [27].
When determining if someone has exceeded the allowable study time, subsection 569H(7) of the Act provides for the following matters to be disregarded:
(a) if the person has completed a course (a pre‑requisite course) the completion of which is the normal requirement for admission to the course in which the person is enrolled or intends to enrol—time spent undertaking the pre‑requisite course;
(b) a failed year of study, or a failed part of a year of study, if the failure is because of:
(i) the person’s illness; or
(ii) other circumstances beyond the person’s control;
(c) time spent undertaking a course that has been permanently discontinued because of:
(i) the person’s illness; or
(ii) other circumstances beyond the person’s control;
(d) time spent undertaking a course that has been completed but which, because of the person’s illness, the person cannot use in any of the trades or profession to which the course is appropriate;
(e) time spent undertaking a TAFE course or a course provided by a VET provider if the normal length of the course for a full‑time student is one year or less;
(f) time spent undertaking a course more than 10 years ago, unless the course has since been completed;
(g) time spent undertaking a course after 1973 if the course was not:
(i) approved for the Tertiary Education Assistance Scheme; or
(ii) approved for the AUSTUDY scheme; or
(iii) an approved course for the purposes of paragraph 541B(1)(c), 569A(b) or 1061PB(1)(b) of this Act;
(h) time spent undertaking a course at a foreign institution;
(i) time spent undertaking a subject from which the student withdrew, if the educational institution in which the subject was undertaken did not record the withdrawal from the subject as a failure;
(j) any time spent undertaking a course during which the person was ineligible to receive:
(i) AUSTUDY; or
(ii) a benefit under the Tertiary Education Assistance Scheme; or
(iii) youth allowance; or
(iv) austudy payment;
because of the application of rules in respect of academic progress.
Relying on section 569H(7)(c), the Applicant contends that six study units, equal to four semesters of study, should be disregarded when calculating her allowable study time due to circumstances beyond her control.[21]
[21] Applicant’s Statement in reply to the Secretary’s Statement of Facts and Contentions (Part 1), p.8.
In the application for review by the AAT1, the Applicant outlined her personal circumstances during her studies. Notably, she was solely responsible for the care of her son, who has special needs. For a period, she had ‘no other income’. She has a ‘history of social and financial disadvantage’, including homelessness and being a single parent in public housing. She experienced health conditions including a ‘chronic iron deficiency’ which cause ‘her to feel tired and exhausted’, and suffers from ‘depression and PTSD’.[22]
[22] T15, p.85.
The Applicant stated that in Term 3 of 2016 she withdrew from the subject Working with Cultural Differences ‘just before the exam’ as she had been evicted from her home and needed to find new accommodation.[23] She writes in part:
In Term 3 of 2016, I withdrew from the unit CULT1023 Working with Cultural Differences because I had to move. I had to find a house, attend inspections, put in applications for properties, organise removalist and storage space, cancel the internet account, cancel the electricity account then after moving connect new internet and electricity accounts. My new internet connection took about six months and I could not engage with university work at home during that time. I also had caring responsibilities and was not able to keep up with the studies.[24]
[23] Ibid.
[24] Applicant’s Statement in reply to the Secretary’s Statement of Facts and Contentions (Part 1), p.4.
In 2018 the Applicant moved again. In 2021 she moved to another apartment after her landlord refused to make essential repairs to the property.[25]
[25] T15, p.85.
In the Autumn 2020 session the Applicant withdrew from the subject of ‘Contracts’. It is not in dispute that Contracts should be disregarded pursuant to 596H(7)(i).[26] The Applicant failed ‘Legal Analysis and Critique’ in the 2019 Spring session.[27] The Applicant contends Legal Analysis and Critique should be disregarded pursuant to 569H(7)(b)(i) of the Act which provides that, a failed part of a year of study can be disregarded if the failure is because of the person’s illness or because of other circumstances beyond their control. She writes in part:
At the time there was a deterioration in my son’s mental health which also affected my mental health as I was spending extra time trying to make sure that he attended his classes and kept up with his school work. This contributed to the deterioration of my test anxiety/depression and I performed badly in the exam achieving less than 45% in the exam. However, I was not receiving austudy and I did not [forsee] that I needed to get a medical certificate or seek psychiatric care in order to get a medical certificate that would be required 3 years later (in 2023) by the Secretary/centrelink. I usually avoid hospitals or doctors due past negative experiences with doctors and hospitals. It is not reasonable to expect corroborating/contemporaneous evidence for a date when I was not receiving austudy...[28]
[errors in original]
[26] Secretary’s Statement of Facts and Contentions [48].
[27] T6, p.59-60.
[28] Applicant’s Statement in reply to the Secretary’s Statement of Facts and Contentions (Part 1), p.6.
The Secretary contends that Legal Analysis and Critique should not be disregarded as there is no evidence the failure was due to her illnesses or other circumstances beyond her control.[29]
[29] Secretary’s Statement of Facts and Contentions [42]-[44].
The Applicant concedes she did not seek medical treatment for anxiety or depression at the time, but has provided a medical certificate dated 29 August 2023 from her general practitioner Dr Predrag Tomasevic.[30] Dr Tomasevic confirmed that she suffers from anxiety and depression that affects the Applicant’s ability to study and resulted in her withdrawing from ‘several university units during several semesters of her university degree’. Dr Tomasevic indicates that the anxiety and depression were diagnosed on 28 May 2022.[31] The Applicant also relies on a medical certificate from Dr Nadira Ara which states she suffers from anxiety and depression which was ‘significant enough to affect her study’.[32]
[30] Applicant’s Statement in reply to the Secretary’s Statement of Facts and Contentions (Part 1), p.6-8.
[31] ST1, p.207-08
[32] T17, p.98.
Dr Tomasevic’s report does not indicate that the Applicant was diagnosed with depression and anxiety prior to 28 May 2022. The Applicant concedes she did not seek treatment for these conditions, which she attributes to the expense and her past ‘negative experiences’ with doctors and hospitals. She contends she could not have ‘reasonably’ foreseen that she may be required to provide a medical certificate or have sought ‘mental health treatment in 2019 in order to have evidence…in 2023’ regarding the cancellation of her austudy in 2022.[33]
[33] Applicant’s Statement in reply to the Secretary’s Statement of Facts and Contentions (Part 1), p.6-7.
That may be the case, but absent corroborating or contemporaneous evidence indicating her conditions were present in Spring 2019 and contributed to her failing the unit, I am not able to find that Legal Analysis and Critique should be disregarded pursuant to 569H(7)(b)(i).
The Applicant had difficulty maintaining appropriate accommodation during her studies which she contends led to her withdrawing from Working with Cultural Differences in 2016. The ceiling in her apartment ‘started caving in’ during February 2019 and remained unrepaired for over a year.[34] However, it was unclear how these circumstances would have prevented her from completing her studies.
[34] T17, p.106-109; T15, p.85.
In June 2017, the Applicant sought advice on transferring to the double degree. On 15 June 2017, she sought advice from the University of Western Sydney ‘experience coordinator’, who referred her to the course adviser. There was no response to an email the Applicant sent to the course adviser. In December 2017, the Applicant sent an email to one of her lecturers seeking information on transferring to the double degree. The lecturer responded, but the information she provided was incorrect.[35]
[35] Applicant’s Statement in reply to the Secretary’s Statement of Facts and Contentions (Part 2), p.5-10.
In October 2018, the Applicant discovered by chance how to enrol in the double degree, which she did later that month. On 7 February 2019, she applied for advance standing for 17 completed units but was only granted standing for 14 units. She claims the delay in transferring led her to take units of study that did not count towards the double degree. She contends that the three courses for which she was not granted standing should be disregarded under section 569H(7)(b)(ii) when determining whether she exceeded the allowable study time.[36]
[36] Applicant’s Statement in reply to the Secretary’s Statement of Facts and Contentions (Part 1), p.4-7.
The Applicant has provided evidence which supports her account of having enquired about changing degree and of not receiving advance standing for some units of study. I accept her account in this regard, but I am mindful that unresponsive and confusing university administration is something that most students are expected to encounter. The email she was provided by her lecturer on 4 December 2017 included a recommendation to seek advice from the Law School regarding ‘units or steps you need to take to best prepare for the transfer’, though it appears the Applicant did not follow that advice.[37] I am not satisfied that the evidence supports finding the circumstances qualify the units of study being disregarded under the provision in subparagraph 569H(7)(c)(ii).
[37] Ibid, (Part 2), p.8-10.
The Applicant also contends that the cancellation of her austudy was contrary to the principles of administration set out in section 8 of the Administration Act:[38]
[38] Ibid, (Part 1), p.1-4.
In administering the social security law, the Secretary is to have regard to:
(a) the desirability of achieving the following results:
(i) the ready availability to members of the public of advice and information services relating to income support generally and to the social security payments that are available;
(ii) the ready availability of publications containing clear statements about income support entitlements and procedural requirements;
(iii) the delivery of services under the law in a fair, courteous, prompt and cost‑efficient manner;
(iv) the development of a process of monitoring and evaluating delivery of programs with an emphasis on the impact of programs on social security recipients;
(v) the establishment of procedures to ensure that abuses of the social security system are minimised; and
(b) the special needs of disadvantaged groups in the community; and
(c) the need to be responsive to the interests of the Aboriginal and Torres Strait Islander communities and to cultural and linguistic diversity; and
(d) the importance of the system of review of decisions under the social security law; and
(e) the need to ensure that social security recipients have adequate information regarding the system of review of decisions under the social security law; and
(f) the need to apply government policy in accordance with the law and with due regard to relevant decisions of the Administrative Appeals Tribunal.
The Applicant submits she is a ‘…member of a disadvantaged group in the community from culturally and linguistically diverse background…’.[39] The Applicant explained at the hearing how cultural issues influenced the care she received for her mental health conditions. She also contends that the delay she experienced in transferring to the Bachelor of Justice and Law degree is contrary to subsection 8(c), which requires administration responsive to cultural and linguistic diversity.
[39] Ibid.
The Applicant claims to have attended the Liverpool Centrelink office on 5 July and 28 July 2022 to request the decision to cancel her austudy be reviewed ‘but was ignored’. She sent a letter on 1 August 2022 and attended Liverpool Centrelink office a third time and was ‘given a reference number but nothing happened until December 2022’, when she applied for review by the Tribunal. She argues her experience is contrary to the stated principles in subsection 8(d) regarding review of decisions under social security law.[40]
[40] Ibid.
Section 8 sets out the principles which the Secretary must have regard to, but I do not consider they allow for a differing application of social security law or policy as was suggested by the Applicant.
From when should the Applicant’s austudy be cancelled?
Section 569H can only allow an assessment as to whether a person has or has not exceeded the allowable time requirement as at a certain date. That determination remains in force until the next time the provision is activated – on the student’s next enrolment.[41]
[41] Wall and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 433.
The Applicant’s austudy was cancelled at the commencement of the 2022 Spring session from 25 July 2022.[42] At that time, the Applicant’s academic transcript records indicate the Applicant had completed 5.125 years of study towards her allowable time for Level B courses of 5.5 years. The Applicant did not exceed her allowable time until 5 December 2022, at which point she had completed 5.625 years of study towards her allowable limit. [43]
[42] T12, p.76.
[43] Secretary’s Statement of Facts and Contentions [49]-[52].
Instruction 3.3.4.70 of the Guide sets out that austudy requires the allowable time to be exceeded before payment will cease. Recipients are eligible for payment until the allowable time is next tested – which in the Applicant’s case was the commencement of the summer 2022 session, on 5 December 2022. I am satisfied that the Applicant’s austudy should be cancelled from that date.
DECISION
For the reasons outlined above, the reviewable decision is set aside and remitted to the Respondent with the directions that:
(a)the Applicant exceeded the allowable study time for the course under paragraph 569H(3)(c) of the Act on 5 December 2022; and
(b)the Applicant’s austudy payment is to be cancelled from 5 December 2022.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member.
..............................[sgd]..........................................
Associate
Dated: 21 June 2024
Date(s) of hearing: 15 April 2024 Applicant: In-person Solicitors for the Respondent: Ms E. Smith, Services Australia
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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